Group also launches national letter-writing campaign calling on House Committees reviewing federal Conflict of Interest Act and MP and Senate ethics codes to recommend key changes to strengthen ethics rules, enforcement and penalties

Ethics Commissioner has rejected more than 80 complaints with secret rulings since 2007, and cleared dozens of Cabinet ministers, staff and MPs who violated ethics rules or exploited huge loopholes in the rules

Friday, April 12, 2013

OTTAWA – Today, Democracy Watch released the complaint it has filed with federal Ethics Commissioner Mary Dawson alleging that Prime Minister Harper’s recent decisions and by-election call for the riding of Labrador helped his Conservative friend Peter Penashue’s private career interest in being re-elected in a way that violates the Conflict of Interest Act.

The first questionable decision is allowing Mr. Penashue to make a $1.35 million spending announcement in his riding on March 11, 2013, just four days before Mr. Penashue resigned his seat.  The complaint requests that the Ethics Commissioner investigate if the Prime Minister knew that Mr. Penashue was going to resign and whether he made the decision to allow Mr. Penashue to make that announcement knowing that Mr. Penashue would soon run as a candidate in a by-election in the riding.

The second questionable decision is that by calling the by-election on April 7th before prosecutors decided whether to charge Mr. Penashue or others involved in his 2011 election campaign for violations of the Canada Elections Act, Prime Minister Harper is essentially furthering Mr. Penashue’s private interests by not allowing voters in the riding to know whether independent investigators at Elections Canada and prosecutors have concluded that there is enough clear evidence of violations to prosecute.  Prime Minister could definitely have waited longer to call the by-election, which would have given prosecutors adequate time needed to make their decision.

The federal Conflict of Interest Act prohibits public office holders like the Prime Minister from exercising “an official power, duty or function that provides an opportunity to further his or her private interests or those of his or her relatives or friends or to improperly further another person’s private interests.” (sections 4 and 6).

Not only is Mr. Penashue clearly a “friend” of Prime Minister Harper (who recently called Mr. Penashue the “best member of Parliament Labrador has ever had” – something a friend would clearly say), but also the Ethics Commissioner has, in her recent ruling in a situation involving Jim Flaherty, made it clear that the definition of “improperly” includes the standards set out in Prime Minister Harper’s Accountable Government guide for ministers.  That guide requires ministers to “uphold the highest ethical standards so that public confidence and trust in the integrity and impartiality of government are maintained and enhanced” and to “make decisions in the public interest” and to “perform their official duties and arrange their private affairs in a manner that will bear the closest public scrutiny.  This obligation is not fully discharged merely by acting within the law” (Annex A, Part I: Ethical Guidelines and Statutory Standards of Conduct).

It seems very clear that Prime Minister Harper’s recent decisions concerning Mr. Penashue do not uphold the highest ethical standards and are not impartial in a way that enhances public confidence and trust as they are favours that help Mr. Penashue; are not in the public interest because they deny voters key information they have a right to know before they vote in the by-election, and; as a result do not bear the closest public scrutiny, given how clearly they help Mr. Penashue’s private career interest in keeping his job, and pay, as a Member of Parliament.

“If the federal Ethics Commissioner fails to rule that Prime Minister Harper’s favours for Peter Penashue violate the federal ethics law, it will be yet another example of her weak enforcement, and another clear sign that the House committee currently reviewing the law must recommend key changes to strengthen ethics rules, enforcement and penalties,” said Tyler Sommers, Coordinator of Democracy Watch.

In its submission and testimony before the House Access to Information, Privacy and Ethics Committee on February 6th, Democracy Watch and the national Government Ethics Coalition called on the Committee to recommend strengthening the federal Conflict of Interest Act and MP and senator ethics codes, and enforcement system, in 30 key ways (and changing related laws in 14 key ways) to finally make corruption in federal politics illegal.  The committee finally began in February, eight months after the legal deadline, the mandatory five-year review of the Act, and is expected to issue its report in May.

Democracy Watch and the Government Ethics Coalition also called on the Procedure and House Affairs Committee to stop holding secret meetings reviewing the MPs’ ethics code, mainly because when the Committee did that in 2007 and 2009 it weakened the code both times.

The Conflict of Interest Act and the MP and senator ethics codes are so full of loopholes, they should be called the “Almost Impossible to be in a Conflict of Interest Rules” — and even worse the rules don’t even apply to the staff and advisers of MPs and senators.

The ethics codes that federal politicians have imposed on public servants contain much stronger rules than the rules the politicians have written for themselves, and the penalties are stronger, including the possibility of being fired.

The more than 200 cases of the following people being let off the hook with no penalty, along with many others who escaped accountability for very questionable actions in past decades, show how much federal ethics rules and enforcement are an ongoing bad joke — Prime Minister Harper,  Nigel Wright, Tony Clement, Christian Paradis, Lisa Raitt, Rick Dykstra, Jim Flaherty, and 25 Cabinet ministers, ministers of state and parliamentarians who along with 35 Conservative MPs handed out government cheques with Conservative Party logos on them, and all MPs who accept sponsored travel from lobbyists.

The Ethics Commissioner is a major part of the problem with ethics enforcement – since 2007 she has rejected at least 80 complaints filed with her without issuing a public ruling (it could be more as she did not disclose the total number of complaints she received in 2008-2009 nor in 2010-2011).  She has received complaints about, or become aware of, at total of at least 100 situations, but has only issued 17 public rulings.  In other words, the Ethics Commissioner may be covering up more than 80 dangerously undemocratic ethics violations.

“Unethical decision-making in federal politics is legal, even by Cabinet ministers, and some political staff and appointees are still not covered by any ethics rules, so loopholes must be closed and enforcement strengthened to finally stop these dangerously undemocratic and corrupting actions,” said Duff Conacher, Board member of Democracy Watch and Chairperson of the 31-member group, nation-wide Government Ethics Coalition.

“To end the negligent pattern of enforcement of the federal ethics rules, the Ethics Commissioner must be required to conduct regular, random audits, and to investigate and rule publicly whenever there are questions about violations, and the Commissioner must be given the power, and required, to fine anyone who violates ethics rules,” said Conacher. â€œAlso, the Commissioner must not be eligible for a second term in office because that creates an incentive to please the Prime Minister and Cabinet by covering up corruption.”

The Conservatives have also joined the international Open Government Partnership which requires, among other key changes, strengthening laws like the Conflict of Interest Act and the other ethics codes and related laws.

The Ethics Commissioner has made 75 recommendations to change ethics rules, but has ignored the biggest loopholes, and also recommended changes that will weaken the rules.  To finally make corruption in federal politics effectively illegal, the Committee must recommend the following changes:

–  Ensure everyone is covered by ethics rules (currently some ministerial staff and advisers, Cabinet appointees, and staff and advisers of MPs and senators are not covered by any rules);

–  Add a general ethics/integrity rule to the Act and codes to ensure that no one can escape accountability by exploiting technical loopholes (as already applies to public servants, and as is set out in the Prime Minister’s Accountable Government guide for ministers);

–  Add an honesty-in-politics rule to the Act and codes that everyone is required to comply with at all times, even in statements made in Parliament (as already applies to public servants, and as is set out in the Prime Minister’s Accountable Government guide for ministers);

–  Add a rule to the Act and codes prohibiting everyone from being in an apparent or foreseeable potential conflict of interest (as already applies to public servants, and as applies to B.C. politicians, and as the Oliphant Commission report recommended) with anyone or any entity, including for their political interests like fundraising or campaigning for re-election;

–  Delete the loopholes in the Act’s and codes’ definition of “private interest” that allow everyone to take part in general application decisions even if they have a conflict of interest;

–  Require disclosure of all assets worth more than $1,000 (the current threshold of $10,000 is much too high) and require divestment of more assets;

–  Strengthen gift rules to make it clear gifts from anyone, including family and friends, that create even the appearance of a conflict of interest must be refused, and delete the loopholes that allow MPs to accept sponsored travel and volunteer service from lobbyists;

–  Add a rule to the codes prohibiting acceptance of any benefit in return for switching parties, or giving up one’s seat or nomination as a candidate in an election;

–  Add a rule to the Act and codes prohibiting the personal use of government property, especially for political activities;

–  Change to a sliding scale for everyone prohibiting lobbying after leaving office for one year to five years (increasing in length as the decision-making power and potential conflicts of the person increase) to ensure everyone must take a cooling-off period;

–  Require everyone to report to the Ethics Commissioner their post-employment activities to ensure they are complying with their cooling-off period (as the Oliphant Commission recommended);

–  Require the Ethics Commissioner to issue a public ruling for every complaint received, and every time advice is given to anyone;

–  Require the Ethics Commissioner to do regular, random audits;

–  Ban the use of the illegal “conflict of interest screens” the Ethics Commissioner is currently using, and require disclosure of all recusals from decision-making;

–  Require the Ethics Commissioner to impose mandatory minimum penalties for ethics violations that match the penalties for lobbying violations (ie. $50,000 to $200,000 fines and jail terms);

–  Allow anyone to challenge any decision or ruling by the Ethics Commissioner in court for any error of fact or law;

–  Establish the Public Appointments Commission, and close the loopholes in the Lobbying Act to prohibit secret, unethical lobbying, and in Canada Elections Act to prohibit secret donations and loans, and in the Public Servants Disclosure Protection Act to strengthen whistleblower protection and extend it to everyone (including political staff), and strengthen enforcement of all of these laws to prevent related unethical actions.